To Invoke or Not to Invoke: That is the Question

To Invoke or Not to Invoke: That is the Question

By Robert C. Phillips
DDA; Retired

            Perhaps influenced by television’s often perverted cop-show portrayals of the typical custodial interrogation situation, it is easy to forget the United States Supreme Court’s invariably unforgiving requirement that whenever an in-custody criminal suspect indicates in any manner that he wishes to remain silent, an interrogation must cease, “scrupulously honoring” the suspect’s right to remain silent.[1]  Similarly, should that same suspect state that he wants the assistance of an attorney, no more questioning is permitted until an attorney is provided.[2] 

Frequently, the problem is how to interpret the suspect’s often poorly expressed attempt to invoke, weighing indecipherable expressions of uncertainty.  Two recent Ninth Circuit Appellate ....